Bush's fickle approach to Texas justice

Who needs facts on execution day?

July 07, 2003|By Derrick Z. Jackson, New York Times News Service. and Derrick Z. Jackson is a syndicated columnist based in Boston.

An article in the current issue of The Atlantic Monthly should further inform and inflame the debate over the honesty of President Bush. When Bush was governor of Texas he routinely denied last-ditch pleas for clemency on execution day by systematically hearing no evidence, seeing no evidence, and sealing himself away from any tragic possibility that any evil was done at all.

The "system" was Bush and his legal counsel from 1995 to 1997, Alberto Gonzales. In 1997, Bush appointed Gonzales as Texas secretary of state. In 1998, Bush elevated Gonzales to the Texas Supreme Court. Gonzales followed Bush to Washington to be White House counsel. Gonzales is widely speculated to be high on Bush's list of potential nominees for the U.S. Supreme Court.

On execution day in Texas, it was the job of Gonzales to give Bush a summary of the case. The summary was the last information standing between an inmate and lethal injection. Gonzales provided 57 summaries to Bush. Gonzales intended for the memos to be confidential, but Alan Berlow, a former National Public Radio reporter who frequently writes on capital justice issues and the author of "Dead Season: A Story of Murder and Revenge," obtained them under Texas public information law.

Berlow found that Gonzales routinely provided scant summaries to Bush. The summaries, according to Berlow, "repeatedly failed to apprise the governor of crucial issues in the cases at hand: ineffective counsel, conflict of interest, mitigating evidence, even actual evidence of innocence."

Berlow cited the 1997 case of Terry Washington, a mentally retarded man who was executed for the murder of a 29-year-old restaurant manager. Washington was executed even though his journey through the justice system was riddled with omissions and incompetence. The jury was never told of the level of his retardation or of the vicious abuse he received as a child. Washington's lawyers failed to find mental health experts for Washington's defense.

In his summary to Bush about Washington, Gonzales played up the murder and almost entirely omitted the evidence that cried out of a miscarriage of justice. Washington's final 30-page petition for clemency was centered on the issues of ineffective counsel and retardation. On execution day, all that Gonzales presented Bush was a three-page memo in which the only mention of the petition was that it had been rejected by the state Board of Pardons and Paroles.

The board was well-known for its lip service to clemency petitions. In a 1998 ruling where the board barely met Supreme Court muster, U.S. District Judge Sam Sparks lamented, "It is abundantly clear that the Texas clemency procedure is extremely poor." Sparks added, "It is apparent none of the members read every word on every line on every piece of paper in the clemency application. ... A flip of the coin would be more merciful than these votes."

Berlow cited the case of David Wayne Stoker. Stoker was executed in 1997 even though one key state witness recanted. Another witness lied about having drug and weapons charges dropped in exchange for fingering Stoker. Law enforcement officials lied on the stand about the exchange. A psychiatrist testified that Stoker would kill again without ever having examined Stoker.

Gonzales wrote about none of this in his execution-day memo to Bush.

There was the case of Billy Conn Gardner. He was executed in 1995 for a school cafeteria robbery and murder even though there were no reliable witnesses and there were dubious deals by prosecutors that resulted in witnesses with ulterior motives for fingering Gardner. Carl Johnson was executed in 1995 despite the fact that his counsel slept through significant parts of jury selection. Gonzales, in his death-day memos, neither reminded nor informed Bush of such mitigating factors.

When Bush ran for president, other states, most notably Illinois, were examining themselves for tragic flaws in the death penalty. Bush remained proud of his system in which he took a mere 15 to 30 minutes to review final pleas. He remained proud even after several newspaper investigations and a Columbia University study found massive evidence of legal, medical, and law enforcement incompetence or lying in Texas death penalty cases as well as racial and class disparities in sentencing.

"I'm absolutely confident that everybody that has been put to death ... are guilty of the crime charged, and, secondly, they had full access to our courts," Bush said.

Going by the Atlantic article, Bush spent so little time reviewing cases because Gonzales gave him so little to review. This should raise some serious questions. It should make Americans wonder what Gonzales would omit on the Supreme Court.

A few years ago, Bush justified killing prisoners in an arrangement where he conveniently received no intelligence. Today Bush is accused of cooking intelligence on weapons of mass destruction to justify a war that has killed thousands of Iraqis. So far Bush has had little to show for his various forms of intelligence, except for mass destruction.